Unenumerated Duties

Law and Philosophy, 1987

This essay considers the nature of duties incumbent on legislators in virtue of the office itself I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral condition s into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality and the criminal law is therefore much less direct than assumed in most theories of the criminal law. I N TR O D U CT I ON Are there general norm ative demands on legislators to conform the results of their legislative activity to the contours of morality? More particularly, does there exist a general duty of this kind which makes it obligatory to create criminal law such that responsibility is necessary for culpability? 1 I take the claims of legislative duties, for the purposes of this essay at least, to be those entailed by the legislative office itself. The duties of interest are those one would have merely in virtue of occupying the office of legislator. The duties of interest here do not follow from a prior commitment to some particular moral school or theory, thou gh I do not wish to be thought to be denying 1 "Responsibility" means moral responsibility, and " cu lpability" means answerability under law, unless otherwise indicated.

Ethics, 2002

2020

Political duty is either the central or fundamental problem of political philosophy. There is no doubt, however, that the history of political thought is replete with attempts to provide a satisfactory account of political duty from the time of Socrates to the present. To have a political obligation is to have a moral duty to obey the laws of one’s country or state. On that point, there is almost complete agreement among political philosophers. But how does one acquire such an obligation? Is political duty more a matter of being than of doing – that is, of simply being a matter of the country or state in question? Many answers have been proffered but none commands widespread assent. However, this study is an attempt to add to the existing debate, by suggesting a solution to the problem of political duty. The paper adopts expository and analytic approaches that are usually associated with philosophical scholarship. Indeed, a number of contemporary political philosophers deny that a s...

2005

2012

This paper deals with the connection between law and morality. Such a connection is relevant for political theory, since demonstrating that law necessarily implies a claim to justice would require fundamental rights to be considered the horizon of any legal system, instead of being considered as dependent on the axiological context of liberal democracies. The paper approaches the controversy starting from an overview of the work of the German philosopher Robert Alexy, in particular his attempt to establish an analytical link between law and morality, and to this end considers law as a speech act with a claim to correctness. It then examines the critique put forward by Joseph Raz, that points out the lack of objectivity of this claim to correctness. In order to establish a moral foundation for law, the paper argues that it is necessary to take account of Karl-Otto Apel's attempt to establish the transcendental foundation of language, as well as of Habermas' critique of that attempt. In conclusion, it is argued that the debate about a possible link between law and morality sheds new light on contemporary debates on liberal justification in political theory.

Re su men: En este ar tícu lo el au tor ar gu men ta que la au sen cia de una ex pli ca ción ade cua da de la le gis la ción al in te rior de la teo ría del de re cho, jun to con la fal ta de le gis la do res y de las le gis la tu ras en el dis cur so fi lo só fi co-ju rí di co, crea —y for ta le ce— la pre sun ción de que la ad ju di ca ción, los jue ces y los tri bu na les son cen tra les al en ten di mien to del de re cho. Por tan to, pre ten de no sólo equi li brar la re la ción en tre le gis la ción y ad ju di ca ción, al re que rir que am bos cum plan los mis mos es tán da res de cohe ren cia y con sis ten cia, pre dic ción y acep ta bi li dad, ra cio na li dad y ob je ti vi dad, sino tam bién ex plo-rar las for mas y los lí mi tes de la le gis la ción, al cues tio nar des de el pun to de vis ta del cons ti tu cio na lis mo la idea de que la le gis la ción como una ac ti-vi dad so be ra na está com ple ta men te li bre de lí mi tes. Abstract: In this ar ti cle the au thor claims that the ab sence of a an ad e quate ex pla nation of leg is la tion within le gal the ory, jointly with the lack of leg is la tors and of leg is la tures in ju ris pru den tial dis course, cre ates —and re in forces— the pre sump tion that ad ju di ca tion, judges, and courts are cen tral to the un der-stand ing of law. Hence, he in tends not only to rebalance the re la tion ship be tween leg is la tion and ad ju di ca tion, by re quir ing that both meet the same stan dards of co her ence and con sis tency, pre dict abil ity and ac cept abil ity, ra tio nal ity and ob jec tiv ity, but also to ex plore the forms and lim its of leg is-la tion, by chal leng ing from the point of view of constitutionalism the idea that leg is la tion as a sov er eign ac tiv ity is com pletely limit-free.

Ratio Juris, 2006

Legal Theory, 2007

2013

This paper provides a response to Michael Davis's criticism of Bernard Gert's defense of the thesis that 'obey the law' is a basic moral rule. Davis's argument depends on the fact that an ordered defense of the rules of morality might begin by justifying enough rules that the rule against breaking the law would not provide sufficient additional protection from harm to justifying the risks involved in giving power to fallible lawmakers. My defense of Bernard Gert's view also appeals to fallibility: to the fallibility of individuals who cannot see the point of certain laws, and who -- if they accepted Davis's view -- would feel justified in breaking them whenever they did not see their violation as also violating some other rule.

Many contemporary scholars who have been concerned with rethinking the fundamental features of the modern republican tradition, in order to re-propose it in the current theoretical debates, from Quentin Skinner to Philip Pettit, emphasize that the ideal of the rule of law can be traced at the core of modern republican theories and of their criticism of monarchic institutions. In some of their works, they bring together the rule of law and the rule of virtue in the republican tradition, without taking into account the possibility of a tension between these two constitutive elements. In my contribution to the volume, I emphasize the existence of a permanent tension between law and politics, between rule of law and rule of virtue, at the very core of the republican tradition, and I explore the different configurations of this tension. In modern republican theories, from Machiavelli to the authors of the Federalist Papers, the republic is always considered from two perspectives: a static and a dynamic one, so to speak. The republican theorists are not just concerned with delineating in the abstract the characters of the best republic, as opposed to those of principality and monarchy. But their works are devoted to the analysis of the orders and the magistracies of the republic throughout history. Particular attention has been devoted over the last few years to the normative dimension of the republican theories: scholars preferred to focus on the key-characters of the republic, and of the freedom that it allows, thus reading the republican theorists from a static or structural perspective. This has brought the aspect of the rule of law, and its prerequisites and consequences, to the fore. Instead, in this paper I draw attention to that other dimension of the republican theories: namely, to their study of the republics in time, and throughout history, and, especially, to the moments of the genesis and corruption of the republics. If one considers the pages devoted to the genesis and corruption of the republics, one clearly observes the great relevance which the republican thinkers ascribed to the element of virtue - be that the virtue of the individual or of collective bodies. It is possible, therefore, to detect in their theories a tension between rule of law and rule of virtue, between law and politics, which gives way to a variety of political solutions.